Res ipsa loquitur ("The thing itself speaks")

Sherrod To Sue Breitbart

Earlier we discussed the grounds for former Agriculture Department employee Shirley Sherrod to sue Andrew Breitbart and other individuals involved in the posting of a misleading video that led to her resignation. She has now announced her intention to sue.

Sherrod, and many supporters, have objected that the tape from the NAACP event was clearly edited to cut off her comments to mislead the viewers. Andrew Breitbart released the video but insists that he did not edit it.

The video itself is certainly misleading as edited.

Sherrod immediately objected that the remarks were “misconstrued.” Nevertheless, she resigned after the video was made public. She was quickly offered a better job by the government after the unfair editing was revealed.Media Matters has responded to the story and accused Breitbart of misleading people on the story. They note that Sherrod was telling a story she had described took place decades ago when she worked for the Federation of Southern Cooperative/Land Assistance Fund. The video reportedly excluded the fact that Sherrod spoke of how she went on to work with and befriend the man. She is quoted as saying at the end of the story: “And I went on to work with many more white farmers,” she said. “The story helped me realize that race is not the issue, it’s about the people who have and the people who don’t. When I speak to groups, I try to speak about getting beyond the issue of race.”

There is no question that the edited material left a false impression as to the point of the speech. While she recounts the racially loaded story, it was meant to explain that “[t]hat’s when it was revealed to me that it’s about poor versus those who have.” That is a very different story where she was trying to explain how she learned to overcome racial sentiments.
I stated earlier that an employment action based on being pressured to resign is doubtful due to her voluntary resignation. While there is a basis for a claim that she was constructively fired or coerced to resign, it is a difficult case to make and she does not appear to be moving in that direction.

The most obvious claims would be false light and defamation.

The Restatement Second defines the tort of false light:

652E. Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

This would certainly seem to be a case of intentional or reckless act. It could also be claimed to be highly offensive to a reasonable person. However, the editor can claim that the tape was meant to show not just the racially loaded comments of a speaker but the reaction of the audience to that portion of the speech. Moreover, Sherrod is still admitting to pretty disturbing racial views in her earlier view of white farmers from the 1980s or 1990s. That is not an entirely complete defense, however, because it still does not explain why the editor would cut out the point of the story.

False light cases have resulted in high damages against news organizations as in this case. However, this verdict was later overturned, which rejected the very use of false light as a tort action.

Some states have curtailed or abandoned false light because such cases can be properly heard in defamation cases. In this case, Sherrod would be considered a public figure or limited public figure. As such, she would need to prove that the editor or people like Breitbart acted with knowledge of the falsity or reckless disregard of the falsity. The question is whether it was false in terms of what was intended to be shown. The editor could claim that he or she was seeking to show the racial elements at the NAACP in response to that organization’s criticism of the Tea Party. That is the position taken by Breitbart in interviews in response to outrage over his role in the controversy,here

Of course, if Sherrod were to sue, she would likely make it past initial motions to dismiss and could secure embarrassing discovery in the case, including possible internal emails and communications on the purpose of the editing and release of the video.

False light is attractive because the actual material shown can be true but still be misleading and the basis for liability. The potential for damages under either claim would be modest. She was quickly rehabilitated publicly after the editing was made public. She is now viewed by conservatives and liberals as a victim of a smear campaign. She was also quickly offered a better job.

For Breitbart the greatest threat is not the ultimate damages but the costs and discovery involved in the litigation. Sherrod could seek emails and communications revealing his motivation and knowledge before posting the video. Breitbart has often been accused of serving as a conduit for conservative interests. However, it will be interesting to see if media groups will view efforts to seize such material as threatening to press rights and interests.

The Sherrods have faced dangerous people in dangerous situations before and have prevailed … their actions over the last few decades attest to the fact that they are not shrinking violets.

This is going to keep the falsity of Breitbart’s video in front of the media for quite a while. To the general public it will be a constant reminder of the right’s falsehoods and that, I suspect, will outweigh the martyrdom of Breitbart conservatives will trumpet.

Even though Sherrods is currently employed, she has a long term interest in her reputation to defend.

The government created the injury and:

“How “uniquely amiss” it would be, therefore, if the government itself — “the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct” — were permitted to disavow liability for the injury it has begotten. See Adickes v. Kress & Co., 398 U.S. 144, 190 (1970) (opinion of BRENNAN, J.). A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed.” See Owen v. City Independence, 100 S. Ct. 1398, 445 U.S. 622 (U.S. 04/16/1980)

She might have a cause of action under the Administrative Procedure Act. That applies to federal employees too. No person can be disadvantaged by unpublished procedure used by federal agencies. See 5 USC section 552

There is a cause of action under 5 USC 552a g 1 (D) when a federal agency: “fail(s) to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.”

this includes “5 USC § 522a (e)(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;”

The NAACP video was a First Amendment Record and under (e)(7) there doesn’t need to be a system of records, only a record.

The video started as a NAACP record but it became a federal agency record. The government possessed, altered, and redistributed Sherrod’s First Amendment Record without her permission and without a statutory purpose.

In my PRO SE “second motion for summary judgment” against DOJ in DDC 09-0562, I pled and DOJ did not dispute this:

For requested materials to qualify as “agency records,two conditions must be satisfied. First, an agency must “either create or obtain” the requested materials “as a prerequisite to its becoming an ‘agency record’ within the meaning of the FOIA.” Id., at 182. In performing their official duties, agencies routinely avail themselves of studies, trade journal reports, and other materials produced outside the agencies both by private and governmental organizations. See Chrysler Corp. v. Brown, 441 U.S. 281, 292 (1979). To restrict the term “agency records” to materials generated internally would frustrate Congress’ desire to put within public reach the information available to an agency in its decision-making processes. See id., at 290, n. 10. As we noted in Forsham, “The legislative history of the FOIA abounds with . .. references to records acquired by an agency.” 445 U.S., at 184 (emphasis added). Second, the agency must be in control of the requested materials at the time the FOIA request is made. By control we mean that the
materials have come into the agency’s possession in the
legitimate conduct of its official duties. This
requirement accords with Kissinger ‘s teaching that the
term “agency records” is not so broad as to include
personal materials in an employee’s possession, even though the Applying these requirements here, we conclude that the requested district court decisions constitute “agency records.” First, it is undisputed that the Department has obtained these documents from the district courts. This is not a case like Forsham, where the
materials never in fact had been received by the agency. The Department contends that a district court is not an
“agency” under the FOIA, but this truism is beside the point. The relevant issue is whether an agency covered by
the FOIA has “create[d] or obtaine[d]” the materials sought, Forsham, 445 U.S., at 182, not whether the
organization from which the documents originated is
itself covered by the FOIA materials may be physically located at the agency. See 445 U.S., at 157. This
requirement is suggested by Forsham as well, 445 U.S., at 183, where we looked to the definition of agency records
in the Records Disposal Act, 44 U.S.C. § 3301. Under that definition, agency records include “all books, papers,
maps, photographs, machine readable materials, or other
documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business. . . .” Ibid. (emphasis added).*fn5 Furthermore, the
requirement that the materials be in the agency’s control at the time the request is made accords with our
statement in Forsham that the FOIA does not cover “information in the abstract.” 445 U.S., at 185.
The court decisions and court issued documents are
obviously not personal papers of agency employees. The Department counters that it does not control these
decisions because the district courts retain authority to modify the decisions even after they are released, but
this argument, too, is beside the point. The control inquiry focuses on an agency’s possession of the
requested materials, not on its power to alter the content of the materials it receives. Agencies generally are not at liberty to alter the content of the materials that they receive from outside parties. An authorship-control requirement thus would sharply limit “agency records” essentially to documents generated by the agencies themselves.” United States Department of Justice v. Tax Analysts 109 S. Ct. 2841, 492 U.S. 136 (U.S. 06/23/1989)[Sieverding v. DOJ DDC 09-0562 document 52]

Breitbart and the other parties who redistributed the edited video were acting in capacity, right?

As a non-lawyer, I’m not quite sure what you’re suggesting – that Breitbart could be held accountable for the actions of the government or that Ms. Sherrod could sue the government. If you could interpret what you said for the laymen here, I would appreciate it.

Well I’m all for it, and I’ve been waiting for it, just on the general grounds that I’m tired of people rolling over for slimy creeps like Breitbart and purveyors of false news and provacateurs like Fox.

As a non-lawyer, I am intrigued by your term, “limited public figure”. I assumed that Mrs Sherrod was not a public figure, and thus would have an easier case to make. Is it because she made a speech that was video taped? It certainly can’t be that the slander itself made her one. Breitbart and the right in general have made a cottage industry out of spreading falsehoods about public figures.

Josiah Haynesworth and Fred Hancock brought this Bivens action for alleged violations of their First, Fourth and Fifth Amendment rights by the District of Columbia and several of its officials.

Although the law was once to the contrary, *fn217 Monell firmly established that a municipality can be held directly liable in damages for constitutional violations.
That liability attaches under Section 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the [constitutional] injury . . . .”

Although Section 1983 is unavailable in this case, this form of responsibility seems clearly imposable in a constitutionally-impaired action as well.

The municipal liability of which we now speak is direct, not vicarious. It is premised, not on the mere fact that the wrongdoing officer is municipally employed, but on the existence of some policy fairly attributable to the municipal government itself. The primary justification for this type of liability is the recognition that a municipality can act only through those who enable it to function. When an officer or employee has been delegated power or responsibility to act for the municipality in a
given area, he may be acting as a unit of the municipal government, thus rendering the municipal entity liable for his constitutional wrongdoings. The critical
issue, then, is whether the municipal representative, when engaging in the activity challenged, can properly be said to have acted as the alter ego of the municipality….

Possession by a lower-level official of de facto final authority may be evidence by the failure of supervisory personnel to oversee his decisions, or by a tendency of subordinate employees to acquiesce in his directives. … Haynesworth alleged that Miller was responsible for
establishment and implementation of policies for the Law Enforcement Section of the Corporation Counsel’s Office.

It follows the analysis of government liability thru deliberate indifference and informal policy making per the S.C. in Monell v. Department of Social Services 436 U.S. 658

I got some of the analysis from HARRIS WILTSHIRE &
GRANNIS, LLP pleadings in HATFILL v. ASHCROFT et al 1:03-cv-01793-RBW I bought copies of their pleadings from PACER. The served defendants included Ashcroft, DOJ, FBI, Gonzales. The individual government employees filed motions prepared by DOJ. DOJ filed separate motions on behalf of DOJ and the FBI. Hatfill argued 1st Amendment Bivens.

I have this analysis in my opening brief filed Monday in CDC 10-5149. I argued liability per the APA or alternately for obstruction of justice intimidating parties 42 USC section 1985(2) against DOJ itself based on deliberate indifference and informal policy making. Of course 42 USC 1985(2) is a statutory base for liability. The statute says “any party” not “any person”.

I’m going to try to get this on my website at http://www.rightscase.com soon. But remember I am a pro se litigant who couldn’t even keep myself out of jail.

Monell v. Department of Social Services holds that local governments may be liable for damages, as well as declaratory and injunctive relief whenever “the action that is alleged to be unconstitutional implements executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover . . . local governments . . . may be sued for constitutional deprivations visited pursuantto governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision-making channels.”While qualified immunity is available to an official sued in his personal capacity, there is no qualified immunity available in an official capacity suit. The Supreme Court has held that a local government defendant has no qualified immunity from compensatory damages liability… Monell allows the imposition of government liability not only when the challenged conduct executes or implements a formally adopted policy, but also when that conduct reflects “practices of state officials so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Liability is attributed to the municipality in custom-type cases through a policy maker’s actual or constructive knowledge of and acquiescence in the unconstitutional custom or practice. Acts of omission,as well as commission, may serve as the predicate for a finding of unconstitutional policy or custom… The Court held that “the inadequacy of training policy may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact….. Justice O’Connor was also willing to recognize that municipal liability on a “failure to train” theory might be established “where it can be shown that policy makers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion, . . . [which pattern] could put the municipality on notice that its officers confront the particular situations on a regular basis, and that they often react in a manner contrary to constitutional requirements.”….. First, deliberate indifference may be established by demonstrating a failure to train officials in a specific area where there is an obvious need for training in order to avoid violations of citizens’ constitutional rights…. where a pattern of unconstitutional conduct is so pervasive as to imply actual or constructive knowledge of the conduct on the part of policy makers, whose deliberate indifference to the unconstitutional practice is evidenced by a failure to correct the situation once the need for training became obvious… government liability attaches when the constitutional injury results from the implementation or “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy…. In Pembaur v. City of Cincinnati,355 a majority of the Court held that a single decision by an official with policy-making authority in a given area could constitute official policy and be attributed to the government itself under certain circumstances…. But Monell’s language encompasses other officials “whose acts or edicts” could constitute official policy. Thus, where a government’s authorized decision maker adopts a particular course of action, the government may be responsible for that policy “whether that action is to be taken only once or to be taken repeatedly.”…. A number of circuits use the Supreme Court’s analysis in City of Canton v. Harris as an analogy in determining whether a supervisory official is deliberately indifferent to the violation of constitutional rights. In Shaw v. Stroud,376 the court held that a three-prong test must be applied in determining a supervisor’s liability. A plaintiff must establish: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” A number of circuits use the Supreme Court’s analysis in City of Canton v. Harris as an analogy in determining whether a supervisory official is deliberately indifferent to the violation of constitutional rights. In Shaw v. Stroud, the court held that a three-prong test must be applied in determining a supervisor’s liability. A plaintiff must establish: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link”.. In Stump v. Sparkman, the Court held that Judge Harold D. Stump had performed a judicial act when he ordered a mentally retarded girl to undergo a tubal ligation at the request of her mother. The Court explained that absolute immunity applies to actions taken by judges “in excess of [their] authority,” but not in the “clear absence of all jurisdiction.” To distinguish between these two standards, the Court provided an example: If a probate judge who has jurisdiction only over wills nevertheless tries a criminal case, then the judge has acted in the “clear absence of jurisdiction.” On the other hand, if a judge with jurisdiction over criminal matters convicts a defendant of a nonexistent crime, then the judge has performed a “judicial act” in “excess of his jurisdiction.”. Federal Judicial Commission report http://www.scribd.com/doc/8763965/Section-1983-Litigation
Section 1983 Litigation by Karen M. Blum and Kathryn R. Urbonya Federal Judicial Center 1998

If the video were ONLY of Sherrod’s speech, you could fairly describe it as “misleading.” However, for the first 15 seconds of the video, there is added text which does not IMPLY that Sherrod is a racist, it baldly states that Sherrod has ADMITTED TO A CRIME!

“Ms. Sherrod admits that in her federally appointed position, overseeing over a billion dollars…She discriminates against people due to their race.”

If you separate the video from that offending text, the video might be simply false light, but with the video purporting to support that conclusion, taken as a whole, in other words, the video is libelous. Ms. Sherrod never admits that “in her federally appointed position…she discriminates against people due to their race.” That is false. And, since it accuses her of a crime, it is libel per se in most jurisdictions (meaning she can recover without proving specific damages).

“Speaking Thursday at the National Association of Black Journalists convention, Sherrod said she would definitely sue over the video that took her remarks out of context. Agriculture Secretary Tom Vilsack has since offered Sherrod a new job in the department. She has not decided whether to accept.

Sherrod said she had not received an apology from Breitbart and no longer wanted one. “He had to know that he was targeting me,” she said.

Breitbart did not immediately respond to a call or e-mails seeking comment.”

And this:

“Sherrod said her faulty firing should not be blamed on all media.

Before the full video was released, Fox News host Bill O’Reilly said Sherrod should be fired, and others called her speech racist. O’Reilly later apologized.

“They had a chance to get the facts out, and they weren’t interested,” Sherrod said.

She said she declined to give Fox an interview because she believed they were not interested in pursuing the truth. “They would have twisted it,” she said.

A Fox News spokesperson did not immediately respond to a request for comment.”

So why was there any hesitation in the first place on the part of Sherrod and her lawyers? Why was there such widespread opinion that it wouldn’t succeed or wasn’t worth it? It seems like nobody else noticed this, including JT.

I hope you can satisfy my doubts so I can go back to salivating like a hungry wolf.

So Sherrod goes on national television and accuses Breitbart of wanting to make blacks slaves again in America, but she has a case of defamation against him for playing comments she does not deny she made at a public meeting. Okay, Jonathon. If everyone who used a comment a public figure made out of the context in which it was made, our courts would be filled with lawsuits. I guess he could always file a countersuit against her, right? C’mon, Jonathon. She’ll be laughed out of court.

Getting at Breitbart was never the issue. Sun Tzu said, “The face of victory is always changing.” He said this because 1) goals should be malleable to fit 2) changes in enemy tactics and 3) changes in the weather and/or terrain.

Please, continue to salivate. You’re still likely to get some tasty morsels.

You know some eople thought the Jews were funny when they were dirty before they were exterminated in Auschwitz and some people thought Southern blacks were funny before they were lynched. I didn’t think it was funny at all. I was a victim of felony witness intimidation and felony deprivation of rights under color of law. I was kidnapped and assaulted by my own government, and I hate my government because of it. I had a right to rely on the NonDetention Act 18 USC section 4001 and other laws and regulations including 28 USC § 516, 28 USC § 566, 28 USC § 1654, 42 USC § 14616, 28 CFR § 16.22, 28 CFR 50.2

The current president of the ABA, Carolyn Lamm, was the opposing counsel. If my claim against the ABA was so frivolous, then they shouldn’t have paid $950 per hour for a lawyer.

The facts of Ms. Sherrod’s case reminds me of a case I read about which involved a photo of a ranch that was distributed. There was a photo of a muddy place and the suggestion was made that there was bad management of the ranch and leased government land. The photo was distributed as if the whole area had had the vegetation removed. Actually it was a small place near a parking lot used by government agents and they were the ones who caused the mud. And Professor Turley analyzed it that way as a tort by government employees. But if Ms. Sherrod can make her claim under the Privacy Act, she can go against the government itself. And, she can get more money than collecting from the employees. Which means that more resources can be devoted to litigation.

I really am sick of government actors clothing themselves in perceived “immunity” to deliberately hurt people thru misleading conduct. If the government has to pay, then the government will control its rabid dog employees instead of letting them victimize the population.

Furthermore, because the facts of my case weren’t heard, because the ABA wouldn’t let them be heard, a man named David Engle died.

Yissil, the answer to your question is that most of us do not relish the prospect of being pilloried for a couple of years. See, e.g., the post by Gary Welsh following yours. Secondly, it is a political case. Judges are understandably concerned when a partisan political attack becomes the basis of a libel action. There’s a lot of highly unethical mudslinging in the political arena on a good day, but unethical doesn’t mean actionable.

Kay, I’ve been trying to follow your posts since your arrival, but I am unable to understand them within any sort of context. I understand that you have been through litigation from your posts, but I have no idea what any of it is or was about. I think my reaction is fairly typical, which may be why you are not getting much feedback on your comments.

‘Slartibartfast’ is the name of a character in Douglas Adams’s book ‘The Hitchhiker’s Guide To The Galaxy’. He’s a member of a race that manufactures planets (and, in fact, manufactured the Earth) who likes making fjords (he won an award for Norway).

Thanks for explaining – that seems like a pretty thin case against the government considering that the damage Ms. Sherrod suffered at their hands (loss of her job) was almost immediately redressed with the offer of another job and that she seems much more inclined to go after Breitbart than the government.

Yissil, I believe the case will be settled out of court because it will survive a motion to dismiss and Breitbart will not want the publicity of a trial since its focus will be on his character. But there won’t be a resolution any time soon.

I asked my husband to put our new brief on our website. What happened is that I sued the City of Steamboat Springs and its city council president and various city officers and lawyers under 42 USC section 1983 because I was harassed and hurt in a scheme to let the city council president take over the road adjoining our former home and build in violation of the zoning. Because about 200 lawyers knew about what were basically criminal acts but didn’t want to get involved I argued that the ABA was a proximate cause. I moved from CO to WI and sued in federal court under diversity. My case was assigned to former judge Naughty Nottingham who was using prostitutes thru our entire litigation. I think DOJ has evidence that my defense lawyers were paying for Nottingham’s prostitutes. I had a lawyer I had paid over $3,000 to who gave me an encouraging letter but he said that he was afraid of retaliation against his law practice if I sued lawyers, which was necessary to make sense of what happened.

The procedure I received in federal court was not what is written. Nottingham did not write a memorandum opinion. The defense bills show that they realized that what was happening would not be res judicata against a new claim so they came up with the idea of getting a NO PRO SE order for succeeding litigation.

After losing in the 10th Circuit, I filed for relief from judgment in a non rendering court under Rule 60b(3) and I relied on 30 day federal tolling to represent my claims. With the knowledge and blessing of the ABA, Nottingham ordered me imprisoned to stop me from pursuing my litigation in the other federal courts. The Marshals ignored their own rules and all sorts of laws to imprison me without a criminal charge.

I think the Denver Marshals did this because Nottingham had been taking them to strip clubs and brothels and that he or someone associated with him got photos of the Marshals in compromising positions. I think the Denver Marshals pulled favors with the Wisconsin Marshals. I think that the ABA was getting payments from Lloyds of London, which sells insurance to attorneys over the Internet. The lawyer was billing Underwriters at Lloyds London to defend a lawyer I sued, who was a state of Colorado prosecutor. I think Lloyds pays protection to various court clerks and attorney regulation counsel around the country and that Lloyds pulled strings to have the clerks and magistrates in Wisconsin break the law.

I tried to get relief from the 10th Circuit but I didn’t get it and I think this is because Lloyds and Faegre & Benson paid the clerk of court (which I can’t prove but have evidence supporting). I think they paid off the 8th Circuit to dismiss my appeal there. That was dismissed on a motion stating that I am not allowed to represent myself.

Then I sued DOJ in the District of Columbia. The government argued that I deserved to be incarcerated without a criminal charge and Judge Bates dismissed my case. I don’t think that DOJ or Judge Bates believed what they wrote. I think they thought that I wouldn’t be able to get thru the appeals process. I filed a timely paid notice of appeal and got approved for a PRO SE ECF account. DOJ filed a “motion for summary affirmance” in the name of a 25 year old inexperienced lawyer only. That disputed the record and asked me to respond with a procedure much inferior to the regular appellate procedure. I avoided the invitation to use the inferior procedure by claiming I wasn’t ready, which I wasn’t at the time, and supplied references to the record supporting our (my husband and I) issues on appeal. Then DOJ filed a reply and claimed that our issues on appeal weren’t in our complaint. They claimed they served me by email to two different email address but that was a lie and they knew that I didn’t have our PRO SE ECF account set up and that I wouldn’t get the paper copy until after July 4, on my birthday in fact which they knew when my birthday was. But when I got their reply, I hustled to pay up my $500 PACER account and get the ECF account active and filed a motion to adduce additional evidence i.e. the complaint before the Court ruled. So then they got until 7/22 to object, but they didn’t. Then I theorized that the Court would rule last Monday so I hustled to get my brief filed by ECF before I went to bed so it would be there in the AM.

These are our issues on appeal currently pending in CDC:

1.) Does the First Amendment limit restraints against PRO SE speech?
2.) Is there an exemption from the NonDetention Act, 18 USC § 4001, for the detentions and threats that DOJ inflicted on the appellants?
3.) When arrest and detention are accomplished without a criminal charge, and systems of records are used, is there remedy under the Administrative Procedure Act?
4.) If either Mr. or Mrs. Sieverding does not have remedy under the Administrative Procedure Act, is there remedy under 42 USC § 1985(2), Obstructing justice; intimidating party, witness, or juror?
5.) Is DOJ required by the Administrative Procedure Act to make annual reports available to the public?

That is why I studied up on the First Amendment.

The last question refers to reports by DOJ’s Data Integrity Committee per 5 USC section 552a(u). They haven’t been filing these reports that they are required to be statute. The reports involve information not just records and therefore go beyond the reports discussed in section 552. We had complained about violations of matching agreements and the plain law of the statute requires DOJ report all such complaints and responses to them. DOJ argued that I didn’t have standing and that a motion under Rule 65 was inadequate to get injunctive relief. So we had to argue statutory interpretation. I think our opening brief was adequate. I think DOJ tried to trick us and used bad faith but I think we got thru the tricks.

I read somewhere that NO PRO SE orders were a foolproof way to avoid a decision on the merits.

I was lucky that Nottingham’s use of prostitutes was exposed thru his divorce.

My belief is that I am not just arguing for myself but that the entire future of democracy rests on my shoulders because PRO SE rights are the foundation of democracy. The former president of the ABA, (before Lamm, Robert J. Grey) wrote that Access to Courts is the Right from Which All Rights Flow and I believe that is true. I think PRO SE rights are necessary as an absolute fundamental right even when litigants have lawyers, so that their lawyers are their agents not their masters.

I hope Mrs. Sherrod’s lawyers do not omit to sue FOX news and at least some of the right-wing web sites that promulgated the libel. Especially any that called for her resignation.

Perhaps one has to have been a government employee (as I was for 11 years – State of NJ) to appreciate how personal attacks can intimidate people from doing their jobs. I’m not saying government employees should be shielded from deserved criticism of their official actions – but they should be protected from frivolous lawsuits, blackmail, threats of assault, etc. – and from egregious libels. Having your own words selectively edited so as to appear to be a racist when you’re anything but – that’s a unique form of character assassination.

Every public employee and elected official should thank Shirley Sherrod if she goes forward with her lawsuit. It will make the right-wing media check their facts before sliming their next target. And that will deter at least some unwarranted attacks.

As for damages… just because the truth came out and Mrs. Sherrod was offered a better job doesn’t mean she hasn’t suffered compensable damages. Yes, she probably won’t suffer monetary loss. But unless Breitbart, Fox et al publish extensive retractions and take affirmative steps to tell their audience that, no, Shirley Sherrod is not a racist, and yes, they were very, very wrong to publish an edited tape that made her look like one, many members of their audience will hold to the conviction that Shirley Sherrod is a racist. (To prove it all she’ll have to do is pull up comments on the right-wing blogs.)

A final point: it doesn’t seem to me that Mrs. Sherrod sought the national spotlight. To be dragged into the glare of publicity, unsought, and in this way, ought to an element of damage in itself. If that isn’t the current state of the law there’s new law to be made.

If sherrod goes after private parties she can only collect assets they have but if she goes fast enough she can probably go on presumed damages. If she wins under the Privacy Act, she gets a minimum of $1,000 plus all her legal bills, no matter how much. Then she can reclaim her reputation and strike a blow against defamation and false light publicity.

My husband is sitting near me trying to put our brief on http://www.rightscase.com. I asked him to convert the Microsoft word document of the main brief to HTML and to worry about the table of contents later.

Mike Appleton
1, July 29, 2010 at 7:23 pm
Yissil, I believe the case will be settled out of court because it will survive a motion to dismiss and Breitbart will not want the publicity of a trial since its focus will be on his character. But there won’t be a resolution any time soon.

It all comes down to first amendment retaliation whether you are a government employee or not. In the case of government employees, they aren’t supposed to mouth off while on the job and they also have statutory Whistleblower protection.

My husband put our brief on our http://www.rightscase.com website, although some of the footnotes don’t show, I don’t know why. Any feedback appreciated.

kay sieverding :
“The Sieverdings lived in and owned property in Steamboat Springs, CO. Their neighbor, Kevin Bennett, the City Council President, fenced off the road adjoining their home and the Sieverdings were threatened if they disturbed it.[2] Then, they were threatened with criminal prosecution in municipal court unless they agreed to give up their rights to the street, which they did.[3] Then, the city council president built extra buildings on his property in violation of the zoning.[4] Their family lawyer told them he would lose the Water and Sewer Commission account if he represented them.”

So why was there any hesitation in the first place on the part of Sherrod and her lawyers? Why was there such widespread opinion that it wouldn’t succeed or wasn’t worth it? It seems like nobody else noticed this, including JT.

I hope you can satisfy my doubts so I can go back to salivating like a hungry wolf.
—————————-
I don’t think that truly responsible people in the publics service are apt to take lawsuits lightly…(my opinion of course…). Maybe she thought that a lawsuit in this political climate would do more harm than good. Personally I’m glad she will pursue this because I think things have gotten way out of hand regardless and more good will come of pursuing this tact…

That would be a correct opinion too, but applicable to all responsible people. Litigation is complex, time consuming, expensive, stressful and filled with uncertainties. It’s not something that should be undertaken unless their is no other option.

Well, I am certainly not a litigation expert. One way to look at what happened to us in Steamboat Springs is that independent of all the anxiety and reputation damages, in 2002, I counted our economic expenses conservatively at $400 K. Which is a lot of $ to us, maybe not to you. I had 2/3rd acre in prime ski resort location and the person who now owns our house, who did fix it up, tried to sell it with only half the land for $ 2 Mill. We had our business there and had bought the property for our business so that was an additional expense.

and, there was government officials errors and omissions insurance.

And, buddha laughing, I did actually discuss doing a mandamus action with a lawyer who suggested it earlier, but she didn’t want to rock the boat.

It would have been much better for us to have resolved things earlier but we couldn’t make it happen without an external legal authority.

The way that David Engle died is that people in Steamboat Springs learned from Kevin Bennett that you can violate the zoning. So his Engle’s home was officially a garage and only had one exit.

Plus, someone in our family really could have died. There was a bullet hole thru our window.

Not much in comparison.
I was looking at a vacant lot next door to Bennett to purchase. When we were walking the property with our three kids, we noticed the property below us and thought it was a wonderful view. Just then Bennett came out of his house and met us. In short, he said if any of us attempted to step foot on the property he would shoot us. He also mentioned that if we built a home on the property he would put up a privacy fence so we couldn’t see the property that went down to the river.

He scared the hell out of my wife and kids. Needless to say we never went back to the property and found something else.

Now that Shirley Sherrod has said she plans to sue blogger Andrew Breitbart for posting an edited video of her comments that he claimed indicated racism, the question arises as to whether she has a case.

At least three attorneys experienced in defamation and libel tell Media Matters for America that she could well win.

“Most certainly she does have a case,” said Attorney Deborah Drooz of Brownstein, Hyatt, Farber, Schreck in Los Angeles, which has handled such cases for Martha Stewart and Aretha Franklin. “What Mr. Breitbart did was to create the false appearance that Ms. Sherrod was a racist. He used that to further his conservative agenda. He deprived the viewer of the ability to decide for himself what Ms. Sherrod said.”

Drooz added, “If he knew that this was only an excerpt, he published it with the knowledge that there was something else. To publish something that created the impression without investigating further, that is acting with reckless disregard for the truth.”

Breitbert, who first posted the clip on July 19 at his BigGovernment.com site, has been under scrutiny after it was revealed the clip misrepresented Sherrod’s message during a speech in March before a group of NAACP members.

Fox then posted an online article reporting on the clip, linking to Breitbart’s video. Breitbart did not seek comment from Sherrod prior to his report; Fox News also gave no indication that they had done so. She was forced to resign later that day.

In the edited tape, she spoke about how she had not initially helped a white farmer as much as she could have in 1986 when he was going to lose his farm. In the posting, Breitbart made it appear as though the story had occurred during her time as a federal official and not 24 years ago when she worked for a non-profit organization, and said that her comments demonstrated racism.

Breitbart also did not include the entire context of the speech, in which she later explained that she learned from the situation and ended up helping the farmer, Roger Spooner and his wife. Both Spooners have spoken out several times to support Sherrod and voice that they would have lost their farm if not for her help.

Sherrod, speaking at a National Society of Black Journalists conference today in San Diego, revealed she planned to sue Breitbart.

Drooz said Sherrod’s status as a public official might be a defense, but that would not stop Sherrod’s chances: “The constitutional malice evidence against Breitbart is rather glaring.”

Two other veteran defamation lawyers said she could have a case against Breitbart or Fox News if certain findings are made.

“The real question would be did he know or have reason to suspect and never inquired that this clip unfairly represented what she said,” Attorney Martin London of New York said about Breitbart. “Are there some facts that could determine that he would suspect it?”

London said that Sherrod must prove reckless disregard on Breitbart’s part and prove his state of mind. He said several pieces of circumstantial evidence could help.

First, that he had the edited clip for at least a day or more: “He had time to check it out and he did not.”

He also noted that Breitbart’s known conservative bent could prove he might have had a motive to discredit Sherrod. “The fact of his political leanings is some evidence that he was out to get her.”

London said the burden would be on Sherrod to prove that Breitbart knew that the tape was edited to present her in a false light, or had cause to suspect it did.

He added that the fact that Breitbart never contacted Sherrod before posting the clip may indicate he had suspicion that she might correct the reporting.

“If he didn’t call her and ask her opinion that is another fact that is important,” London added. “The jury could infer he didn’t call her because she could deny it and he would lose the story.”

Another defamation veteran, Paul Kleven, a lawyer based in Berkeley, Calif., said such a claim could possibly be made more against Fox than Breitbart. Given Breitbart’s history of doctoring videos, Fox should have suspected that a video he provided might have been doctored.

“For them to accept it as gospel and run with it the way they did, they would have reason to doubt his integrity,” Kleven said. “He would be the sort of person they would suspect of doctoring it in some way. Getting it from Breitbart, they would have a reason to believe it could be slanted in some way.”

I just don’t see it. Even the edited version was clear that the point of her anecdote was that she learned a lesson from the encounter. It’s not accurate to say that Brietbart edited out “the point of her story.” Go re-watched the Brietbart version and pay special attention to the part where Sherrod states (to paraphrase) “it’s not about black or white . . .it about those who have and those who have not.” The point of the story was crystal clear, which is why it was pretty shocking that the Obama administration reacted the way it did.

There also seems to be a First Amendment issue here. Do we really want a regime where every politician can run to the courthouse whenever they feel a sound bite has been taken out of context? Talk about a chilling effect. Michael Moore has become filthy rich through creative editing to make his point. Every Michael Moore movie would subject him to probably dozens of “false light” lawsuits. What studio is going to step up to that kind of liability exposure. You guys may hate Brietbart, but you have to see that a successful Sherrod lawsuit would be very bad for free speech.

Also discovery is a two-way street. And when I was in law school they taught us that “truth is a defense” to defamation. If Sherrod feels comfortable telling a crowded room that she took a white guy “to one of his own” what private documents and records might lurk out there?

Finally, Brietbart didn’t fire Sherrod. It seems to me that Brietbart would have a contribution claim against those who did fire Sherrod, and they could be brought in as third-party defendants. Again, lots of embarrassing discovery opportunities here.

Discovery can be a messy process, Wayne. Make no mistake though – most of the mess PropagAndy stepped in is of his own making. The Administration will likely get a little on themselves, but their exposure is almost nothing compared to his especially when you compare what they stand to lose versus what he stands to lose. Breitbart should have thought of that before acting with malice and disregard for the truth. And as pointed out by several others, his ultimate costs of concern are likely not of the economic variety.

Video of Charles Sherrod, husband of Shirley Sherrod, railing against the white man and “Uncle Toms”.

In which

Buddha Is Laughing 1, July 26, 2010 at 12:24 pm

Responded

She is not her husband, badtroll. And since when did you think you’d be taken seriously after using the “Christ Killer” stick in here, bigot? Oh, that’s right! You like your play pal TraitorB here can’t tell when you’re the objects of ridicule and not the dispensers of ridicule.

Two separate people with nothing in common. Got it.
—
417 Byron 1, July 26, 2010 at 12:34 pm

Bdaman:

That seems pretty benign to me. But racism is a form of tribalism and it effects all people. It takes a certain level of intellectual development to understand that racism/tribalism is nothing but an affront to the individual. And since all men are individuals racism/tribalism strikes at the very core of our society which is founded on individual rights. Ergo a racist is actually against the American ideal and no friend of liberty.
—
419 Buddha Is Laughing 1, July 26, 2010 at 12:35 pm

Apparently not.

Married people disagree on lots of things all the time. Being married doesn’t make one a clone of the other.
—
421 Buddha Is Laughing 1, July 26, 2010 at 12:36 pm

And what Byron and Jill said.
—
423 Blouise 1, July 26, 2010 at 12:39 pm

Byron
1, July 26, 2010 at 12:34 pm
Bdaman:

That seems pretty benign to me. But racism is a form of tribalism and it effects all people. It takes a certain level of intellectual development to understand that racism/tribalism is nothing but an affront to the individual. And since all men are individuals racism/tribalism strikes at the very core of our society which is founded on individual rights. Ergo a racist is actually against the American ideal and no friend of liberty.

=================================================================
Very well put!

Now … everybody, stop being interesting so I can get out of here!
—
424 Bdaman 1, July 26, 2010 at 12:40 pm

Byron it’s the part where he says we must not be afraid to turn a black out who votes against our interest.

P.S. how you doin? Getting ready to take the little one to the pool. I’m still here everyday but just haven’t felt like commenting.
—
426 Bdaman 1, July 26, 2010 at 12:42 pm

Some married people are just like two pea’s in a pod.
—
428 Buddha Is Laughing 1, July 26, 2010 at 12:44 pm

But most aren’t. I see your platitude and raise you an “opposites attract” don’t you know.
—

His identity is moot because it’s your tactic that’s a loser. Those “other people on the internet” (and certainly buckeye who is a sharp person despite any disagreements we may have) aren’t so stupid as you as to think that a husband’s thoughts and statements necessarily equate to a wife’s thoughts and statements. But then again, misleading people has always been your goal, badtroll. False equivalence is such a weak tactic. Some people learn from using a losing tactic over and over again.

Must just be you that doesn’t.

By the way, how’s that birther angle working out for you? (rhetorical)

Excerpt:
Shirley Sherrod’s longtime attorney said her pending lawsuit against Andrew Breitbart will seek to be a deterrent for future defamation actions, adding that it is not about money.

But Rose Sanders, who has known Sherrod for decades, stressed that it will seek monetary damages because “that is all right-wing capitalists understand.”

“It will be a legal deterrent,” Sanders, who is based in Selma, Ala., told me Friday. “That when you destroy a person’s reputation, you will pay the consequences.”

Sanders’ comments follow Sherrod’s announcement Thursday that she plans to sue Breitbart, who posted an excerpt on July 19 of a speech that Sherrod gave in front of a NAACP group. He claimed that the clip showed her engaging in racism.

The tape resulted in Sherrod being fired July 19, but she was later offered a new USDA job after it became clear that Breitbart’s video had taken her statements out of context.
Several defamation lawyers have told Media Matters that Sherrod could have a good case against Breitbart.

It seems to me that there is a middle ground in all of this. She was very wronged. She has not lawsuit. There are lots of cases where there is wrongful injury and actual damage. This is not one of them nor should being a bad blogger be a crime.

Someone said above what about Michael Moore? Half of what he does would be actionable if this claim is. Geez, almost everything Glen Beck says would be actionable as well.

Hooray for Ms. Sherrod. Whether she gets anything for it or not, it is a civic service to the rest of us to have a chilling effect on this Breitbart kind of lie; and although I feel certain it WAS a purposeful lie and smear, it was at minimum reckless disregard. Give us an address, Shirley, where we can contribute a few bucks to your legal fund.

No, apparently you don’t get much anything of substance from words, badtroll.

Especially learning or any noticeable benefit one associates with become more intelligent over time. Contrast this to becoming less intelligent over time. You know less intelligent over time . . . don’t you?

I’m not hijacking anything other than your assertions that you are credible as a source of . . . well, anything. Other than serving as an example of a bigoted, anti-Semitic douche bag. I’ll give credit where it is due. You are an excellent example of those behaviors.

of course climate change is undeniable, it has been happening for what 4 billion years. Ice ages, hot ages, temperate ages. The earth’s climate is changing all the time and changing from one area to another.

That have only been measuring temperatures since 1971 no need to mention it.

advanced computer modeling and the very latest data?

And those advance models now say we are headed for a thirty year cool down again no need to mention that becasue the more co2 that gets in the atmosphere the hotter it will get. Maybe the models are taking into consideration that CO2 emissions will cease, FAAARRRRT, man that one stinks like the smell of your upper lip.

The Frogs were living as happy as could be in a marshy swamp that just suited them; they went splashing about caring for nobody and nobody troubling with them. But some of them thought that this was not right, that they should have a king and a proper constitution, so they determined to send up a petition to Jove to give them what they wanted. “Mighty Jove,” they cried, “send unto us a king that will rule over us and keep us in order.” Jove laughed at their croaking, and threw down into the swamp a huge Log, which came down splashing into the swamp. The Frogs were frightened out of their lives by the commotion made in their midst, and all rushed to the bank to look at the horrible monster; but after a time, seeing that it did not move, one or two of the boldest of them ventured out towards the Log, and even dared to touch it; still it did not move. Then the greatest hero of the Frogs jumped upon the Log and commenced dancing up and down upon it, thereupon all the Frogs came and did the same; and for some time the Frogs went about their business every day without taking the slightest notice of their new King Log lying in their midst. But this did not suit them, so they sent another petition to Jove, and said to him, “We want a real king; one that will really rule over us.” Now this made Jove angry, so he sent among them a big Stork that soon set to work gobbling them all up. Then the Frogs repented when too late.

Of course you’re correct. But I think we also need to consider what impact humans may have had on climate change. Some people close their minds to the thought that the burning of fossil fuels and other human activities may have indeed affected Earth’s climate. I think it best to address the issue now.

Please, the simple moral of that fable is “careful what you wish for” or “leave sleeping Gods lie”, but it’s not about big government when extrapolated into politics. It’s about an overreaching and/or abusive executive.

Perhaps the most important cause of the oil’s disappearance, some researchers suspect, is that the oil has been devoured by microbes. The lesson from past spills is that the lion’s share of the cleanup work is done by nature in the form of oil-eating bacteria and fungi. The microbes break down the hydrocarbons in oil to use as fuel to grow and reproduce. A bit of oil in the water is like a feeding frenzy, causing microbial populations to grow exponentially.

Typically, there are enough microbes in the ocean to consume half of any oil spilled in a month or two, says Howarth. Such microbes have been found in every ocean of the world sampled, from the Arctic to Antarctica. But there are reasons to think that the process may occur more quickly in the Gulf than in other oceans.

Microbes grow faster in the warmer water of the Gulf than they do in, say, the cool waters off Alaska, where the Exxon Valdez spill occurred. Moreover, the Gulf is hardly pristine. Even before humans started drilling for oil in the Gulf — and spilling lots of it — oil naturally seeped into the water. As a result, the Gulf evolved a rich collection of petroleum-loving microbes, ready to pounce on any new spill. The microbes are clever and tough, observes Samantha Joye, microbial geochemist at the University of Georgia. Joye has shown that oxygen levels in parts of the Gulf contaminated with oil have dropped. Since microbes need oxygen to eat the petroleum, that’s evidence that the microbes are hard at work.

“Joye has shown that oxygen levels in parts of the Gulf contaminated with oil have dropped. Since microbes need oxygen to eat the petroleum, that’s evidence that the microbes are hard at work.”

“an explanation for recent fish kills? a brown tide vs. a red tide?
Typically, there are enough microbes in the ocean to consume half of any oil spilled in a month or two, says Howarth.”

by extrapolation an indication that oil has been naturally seeping into the environment for eons? Probably so since oil is a natural substance and it is not man made. And nature has a way of taking care of it, seems pretty simple to me.

The fact that the gulf spill is like ‘sunburn on a cancer patient’ (which, I note, would potentially be a very bad thing in the case of a patient with an early stage of melanoma – the reduction of the cells DNA repair mechanisms would make mutation into a more virulent state much more likely…) is hardly good news – we’ve fucked things up so badly that this hasn’t hurt that much more? Not the strongest argument I’ve ever heard. Also, I think that their are a couple of hidden issues – the unprecedented use of dispersants (I think we’ll find that they made things much, much worse for everyone except BP) and the microbes eating the oil (when they metabolize the oil they also consume oxygen which may expand the ‘dead zones’ in the gulf or create more. I hope you’re right that this wont turn out to be the catastrophic disaster everyone’s been predicting, but I still think that it will turn out to be much closer to catastrophic that the insignificant damage that Tony Heyward spoke of.

Do they fry up well? How do you cool them really, we had a thread about cooking.

Are they as tasty as I hear mountain oysters are? You learned that the next time that they must be pruned before eating, yes?

Did the hoof marks come out of your front side?

How long was it that you were able to hold on before being forced to let go?

Is your back still scratched? Bet so.

Next time you’ll know better. Same with Lamb Frys, but, I understand that they will just kick your face, but then again how would anyone be able to tell the difference anyways….just sayin….I heard your momma took you in to the dermatologist and alls it turned out to be was fork marks.

AY come on now, do you really want to start. I was trying to be sincere as you were on a personal level being open and honest with you and now you want to bring my momma into it. Come on AY your better than that. I even offered words of encouragement, key word courage. Follow the yellow brick road and go see the wizard. He can help you.

You’re a big boy … I have found that men can involve themselves in the most vicious contests, throw punches and words and when it is over, shake hands and go out for a beer … it always amazes me as women fight to the death … forever … at any rate, I try to stay out of the way when men are in the middle of a battle … so I’m going back into the ladies room and powder my nose.

Oh …May I have a few dollars to tip the attendant? (that was sarcasm aimed at we women)

Slartibartfast wrote on May 3, 2010 at 2:38 pm
“How soon would you be willing to eat shrimp from the Gulf? Seeping spread out over undersea structures throughout the world is entirely different from 5K+ barrels of oil being spewed out of one wellhead every day. This is not a little thing that will be cleaned up and all better in a couple of years. I’m guessing that we probably wont know what the full impact of this spill is for a couple of years and the effects will last decades at a minimum.”

Slartibartfast wrote on July 29, 2010 at 5:15 am
“My PhD is in mathematics from Duke University and I don’t expect anyone to be impressed, just to understand that when I talk about math and science I’m speaking as a professional, not a layperson. And around here you’re not a PhD, you’re just a troll with no credibility – unless you’d care to tell us your name so that we can check it out for ourselves…”

I predicted on several sites that microbes would consume the oil very quickly. I was too conservative. I predicted there would be no signs (except harmless tar at the bottom of the ocean) within 1-2 years.

You do not know how much fun I am going to have with my Dukie relatives.

Excerpt:
A seemingly feel-good story showed up this week on the nation’s front pages and newscasts: The oil that befouled the Gulf of Mexico for 86 days is vanishing from the surface, leaving workers with little to clean.

But scientists warn the oil’s ecological impacts are shifting, not ebbing, thanks to massive volumes of dispersants that have kept the crude beneath the waves.

“This is a management decision, to use dispersants,” College of William and Mary marine science professor Robert Diaz said yesterday. “It doesn’t make the oil go away, it just puts it from one part of the ecosystem to another.”

That dispersed oil now hovers, diluted in the water column, posing a challenge for scientists to track and measure the subsea plumes. Mapping the long-term effects of the nearly 2 million gallons of dispersant used by BP PLC may well be equally difficult, given the array of unanswered questions that surround the products’ rapid breakdown of oil droplets and their chronic toxicity.

Excerpt:
Scientists have found signs of an oil-and-dispersant mix under the shells of tiny blue crab larvae in the Gulf of Mexico, the first clear indication that the unprecedented use of dispersants in the BP oil spill has broken up the oil into toxic droplets so tiny that they can easily enter the foodchain.

Marine biologists started finding orange blobs under the translucent shells of crab larvae in May, and have continued to find them “in almost all” of the larvae they collect, all the way from Grand Isle, Louisiana, to Pensacola, Fla. — more than 300 miles of coastline — said Harriet Perry, a biologist with the University of Southern Mississippi’s Gulf Coast Research Laboratory.

With surface oil slicks fading from view in the Gulf of Mexico, courtesy of the capped Macondo well, we’d be out of our minds to think that the oil still isn’t there, warn forensic toxicologists.

“We’re finding less and less oil as we move forward,” disaster response chief Thad Allen said last week, noting skimmer boats having trouble finding slicks. The retired Coast Guard admiral also pointed out that some 40% of the leaked oil, more than 90 million gallons of crude by U.S. Geologic Survey scientist estimates, is missing. “There’s the issue of whether or not we may find oil under the water,” Allen added.

Under the water is where the oil is, say environmental chemists such as Jeffrey Short of the conservation group, Oceana, and not just in deep sea clouds of oil reported by National Oceanic and Atmospheric Administration (NOAA) scientists. “Oil tends to congeal and where you saw a broad slick, you now have a lot of droplets and tarballs,” he says. Whether floating as tarballs, buried under Mississippi River mud or carried off in currents to the Atlantic, much of the spilled oil remains in the water, Short says.

Excerpt:
Now that BP engineers have managed to place a cap on the company’s bleeding well in the Gulf, the sprawling oil slicks seem to have retreated from the water’s surface, claimed many media reports this week.

“Where is all the oil?” an AFP headline asked. Time magazine ran a piece suggesting that the environmental impact of the spill has been “exaggerated.” The New York Times ran a story that said the “Gulf oil spill is vanishing fast.” And this very news organization ran a story suggesting that oil-gobbling microbes are eating up a lot the oil.

These reports have angered many — particularly those close to the disaster who are still, well, seeing lots of oil.
“There was more oil at South Pass Tuesday than I’ve seen since this whole thing started; it was really discouraging,” Louisiana charter boat captain Mike Frenette told the New Orleans Times-Picayune’s Bob Marshall. “I don’t know where everyone else is looking, but if they think there’s no more oil out there, they should take a ride with me.”

Don Sutton, another charter boat captain, concurred, telling Marshall that he followed a line of floating oil “that stretched from South Pass to Southwest Pass probably two to three miles off the shore,” more than 15 miles. “And that wasn’t all we saw. There were patches of oil in that chocolate mousse stuff, slicks, and patches of grass with oil on them. The Gulf might look clear, but we’re still seeing oil coming ashore.” Recent satellite photos showing large swaths of discolored water seem to back up the claims by Frenette and Sutton.

The problem is that the info is readily available on the internet. All a person need do is search with IXTOC 1. I educated myself on the topic before I posted. There are a number of scientific papers online.

I am sure they can find spots where there is a lot of oil. I am sure there is still oil in the estuaries, but it is concentrated. It will largely have to be cleaned up manually. The microbes consume a lot of oxygen, so a concentrated mass will rapidly deplete available oxygen in the water, so it takes a long time to consume it. That is why they use dispersants. I gave 1-2 years for complete clean-up, but it is likely to occur faster.

The biggest mistake was political. The Government used many of the scarce booms to protect the beaches for political reasons. They are the most conspicuous, but easy to clean. They should have used them all to protect the estuaries, which are very difficult to clean.

About a million barrels year seep naturally into the gulf yearly. Tar balls washing up on the shore are a natural occurrence.

“Not all of us who comment regularly at the Turley Blawg are lawyers–but there are several REAL lawyers who do.”

Really? I have not found the discussion of Sherrod’s case to be very insightful here, much better on WaPo and NYT. Professor Turley’s article is very good though, although he does not seem to know that the redemption is in the Breitbart tape.

Most of the people who know somthing about defamation at WaPo and NYT did not think she had a case. Many thought that it might even be dangerous for her to sue. The only ones who think she should sue are the ones who think she has to prove malicious intent to prove defamation.

The main reason I would like to see a suit is to clear Breitbart and to find out who in the White House told Cheryl Cook to fire her.

Sadly, it’s a reflection of our educational system (and the media), that many Americans have been kept in the dark about the FBI’s abuses over the years. I’m guessing that you’ll agree that it wasn’t all right then and it isn’t okay now. And, from my perspective, following the reign of Bush and his gang, things are as bad as they’ve ever been, if not worse.

(And some, it would seem, don’t want to know the truth. Many are content to go blindly about their business with little concern for what doesn’t directly impact them. Andrew Napolitano’s book “A Nation of Sheep” would apply here.)

What we have now is the TIPS program on steroids. Red Squads are back and, in full force, in my opinion. And it’s possible that they’re working with the FBI, given what I’m seeing. Some of the methods that were used in the old Soviet Union are being used to marginalize and discredit those who are out of step with the status quo (and also happen to be vulnerable). It’s an outrage, but few are paying attention, it would seem.

The problem is that the info is readily available on the internet. All a person need do is search with IXTOC 1. I educated myself on the topic before I posted. There are a number of scientific papers online.

I’m in total agreement, too many depend solely on google who happens to be this administrations number one engine.

Swathmore Mom

The only person in this thread who I am aware of who is in good standing with the bar is the highly esteemed Mike Appleton.
That better.

P.S. last week I made mention of the liberal media and either you or Mrs. Elaine said what liberal media, something to that effect.

No. Speaking for myself, I’m a lawyer who is simply not interested in your personal problem that you bring to every single thread you post on. You have your own blog, which you’ve informed everyone of many times. This isn’t the “Pro Se Property Litigation Blog”.

badtroll and TraitorB,

Yeah. There are some wannabes here alright. Propagandist trolls who wannabe taken seriously and manage to fail massively at it.

“They don’t like social movements. They work for the establishment and the corporations and the politicos to keep things as they are. And they want to frighten and chill the people who are trying to change things. …” (Zinn)

Zinn’s points are legitimate for only a bureau so wrapped up in the types of concerns Zinn mentions could have missed the dangerous presence of 19 foreign terrorists on our soil for months and months thus leaving the citizenry vulnerable to the attacks on 9/11. Had the FBI been on the job from the top down …

I suggest you buy a copy of the AP Stylebook (cheap at Amazon) and read the chapter on media law. Compare what they say to what people write here. For example:

Greg wrote on July 29, 2010 at 5:52 pm
“… Ms. Sherrod never admits that “in her federally appointed position…she discriminates against people due to their race.” That is false. And, since it accuses her of a crime, it is libel per se in most jurisdictions (meaning she can recover without proving specific damages).”

Mike Appleton wrote on July 29, 2010 at 6:07 pm
“Greg, that’s a very good point. I’ve been focused on the video, but not the intro. It is libel per se. This case will never go to trial.”

Buddha Is Laughing wrote on July 29, 2010 at 6:10 pm
“Greg,
Nice catch there. Kudos.
And what Mike said. This will probably not go to trial but if it does?
I’ll probably laugh so hard I’ll hurt myself. I better start limbering up now just in case.”

Elaine M. wrote on July 29, 2010 at 6:18 pm
“Greg–
Excellent point! It pays to be observant.”

Well, I’ll let it slide this time, but according to the jolly fat man he’s been working on computers for thirty years.

Something is a miss, a doctor doesn’t acquire a license to practice and not use it. I would think that a law degree would be the same, of course that is if that particular person lacks dedication and focus or the other alternative in which they were given no choice in the matter, be it a lawyer or a doctor that is.

Kay S: I noted your comment about discussing pro se litigation rights. You should understand a couple of things. First, there are no special considerations afforded to pro se litigants outside of small claims courts, where rules of evidence are flexible and judges assist the parties in presenting their claims and defenses. A person bringing an action pro se is expected to comply with the applicable rules of procedure, including the fundamental requirement that the pleadings state a cause of action recognized in the jurisdiction. They are required to strictly comply with the rules of evidence. And they are expected to find and submit the law governing their claims. In my experience that is a virtually impossible task for most lay persons.

Second, it is unlikely that you will find any attorney prepared to do an online review of your case with you. That’s called practicing law and that’s not the purpose of this blog as far as I know. Furthermore, it would not be possible, even if one were so inclined, to provide competent insight into your situation based upon your web site and your posts. If you wish feedback from a lawyer about your case, you should arrange to contact one. That person will likely wish to meet with you personally and review the entire record and the factual history. That person will also likely charge you a fee for the service.

I hope this doesn’t sound harsh, but you should no more expect legal advice over the internet than you would expect an online medical diagnosis.

The thing that most disgusts me about that day (besides the needless deaths and property destruction) is not Bush’s “deer in the headlights” freeze in the classroom, nor his long, cowardly flight aboard Air Force One … what most disgusts me is his facilitating the flights that carried all his family’s Saudi friends out of the country that day. All other planes were grounded but the, oh so special, Saudi nationals were allowed to leave … unvetted and unheeded. Who knows what culprits joined the group.

Probably not in my lifetime, but certainly sometime within the next few decades, that entire story will be known and written up in the history books with all the appropriate analysis.

My grandchildren will know the whole story of that day and the years of bad decisions that followed. Sadly, by not pushing to prosecute torture, Obama will find himself tied to that despicable crew.

I prepared a written memory line of that day and the weeks that followed complete with my thoughts and feelings and those of my friends and neighbors so that my grandchild and great grandkids will have their own “source” of material. It is a file complete with print outs from newspapers and flash drives with videos.

Bdaman, your last comment is inaccurate. A law degree is useful because it provides career flexibility that a medical degree does not. (Of course, a law degree does not provide the same income potential as a medical degree.) There are many lawyers who do not practice law for a living. I had classmates in law school who had no intention of practicing law. And there are hundreds, if not thousands, of lawyers leaving the practice of law each year for a variety of reasons.

I’m with you in re the Saudi flights provided by the Bush Crime Cartel. Like I’ve said before, the U.S. Constitution, Art. 3, Sec. 3 says “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

Helping suspects and possible perpetrators of an attack against the country most certainly counts as giving them aid and comfort.

Pull together a file complete with you thoughts and feelings about that day and the years that followed. Put it in your Will. Who knows where it will surface down the road of time but “revisionists” will always be with us and it is our duty to keep the historians honest! (Think of all we’ve learned from the Jefferson/Adams letters and all we missed out on thanks to Martha destroying so much of George’s correspondence)

Based on this from the Citizen’s Media Law Center, it appears that Sherrod would be classified as public figure and would have to prove actual malice, even if she were accused of a crime:

“The “public officials” category includes politicians and high-ranking governmental figures, but also extends to government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs. Courts have interpreted these criteria broadly, extending the public figure classification to civil servants far down the government hierarchy. For example, the supervisor of a county recreational ski center was held to be a “public official” for purposes of defamation law. See Rosenblatt v. Baer, 383 U.S. 75 (1966). Some courts have even extended the protection to all individuals engaged in matters of public health, such as hospital staff, given the importance of health issues for the general public. See Hall v. Piedmont Publishing Co., 46 N.C. App. 760, 763 (1980).

“In general, if an individual is classified as a public official, defamatory statements relating to any aspects of their lives must meet the actual malice standard of fault for there to be liability. Moreover, even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders.”

The key point in the Newsweek article is that his video contained the redemption, but, in hindsight, he wishes he could have included more. I know many people who viewed it, as opposed to the networks’, and missed the redemption.

re Mike Appleton — the feedback I get over the Internet is useful to me. As far as my pro se competence, in my underlying lawsuits I went on a new use of 1985(1) right to sue (someone should), 1985(2), 1983, 552a g(1). For my exhibits I used mostly government documents, records of other courts, and verified attorney bills supplied by my defendants. It is a problem for PRO SES not knowing what they don’t know and I am not alone in that. However, I do have a masters degree from MIT and always was a pretty good researcher. I took an aptitude test that rated me in the 99th percentile in reading speed, reading comprehension and long term thinking. And I spend a lot of time on it. What really helped w my current brief was the forms and rules of the CDC, which are very elaborate. They clued me into thinking about it as a matter of statutory construction. Then I compiled a huge addendum, which I later cut down, but that helped me. I also have a huge collection of SC dicta and was ecstatic when I read that CDC treats it like law. My preferred way to write briefs is to string dicta together and compare it to my facts. What really helps me a lot are the advanced search functions on my Mac. Another thing that really helps is spending money on PACER to look at lawyers’ pleadings. I copied whole paragraphs from Steven Hatfill’s lawyers’ objections. I also copied paragraphs on a motion for judicial notice and then I argued that the lawyer had a good resume and the opposing counsel, representing a Fortune 400 company, didn’t object so therefore what the lawyer wrote must be right.

Re Bdaman — every blogger has an agenda of some sort. And I was getting something useful out of this thread, related to Sherrod’s facts, until certain people as they said highjacked it. The Colorado Pols website is not my very own blog — I can’t even post on it. I tried to do one on Wordsmith and it wasn’t even visible. Maybe I will put one on http://www.rightscase.com, if my son helps me with the software as at least that site is visible.

I consider that what I am doing by blogging about the criminal Witness Intimidation, 18 USC section 1512, directed to stop my Access to Courts is attempting to influence public policy by advancing PRO SE rights. I also do blog about subjects unrelated to my lawsuit. For example,

There was a breakdown in the system, and it is being addressed,” he said. “But it must say something about the power of Fox, that a week after she resigned, we’re still talking about this.”

The breakdown occurred following Fox’s afternoon news meeting that day, when Clemente, according to The Washington Post’s Howard Kurtz offered the following advice: “Let’s take our time and get the facts straight on this story. Can we get confirmation and comments from Sherrod before going on-air. Let’s make sure we do this right.”

anon nurse: “When the whole truth is revealed (if it ever is), good Americans will be outraged. It’s perilous (not an overstatement) to allow what’s going on to continue.”

____

It’s too late I fear- 1984’s already here, it just needs to be adequately staffed.

The panopticon economy
The NSA’s new data-mining facility is one component of a growing local surveillance industry.

” “No longer able to store all the intercepted phone calls and e-mail in its secret city, the agency has now built a new data warehouse in San Antonio, Texas,” writes author James Bamford in the Shadow Factory, his third book about the NSA. “Costing, with renovations, upwards of $130 million, the 470,000-square-foot facility will be almost the size of the Alamodome. Considering how much data can now be squeezed onto a small flash drive, the new NSA building may eventually be able to hold all the information in the world.” ”

lottakatz: Thanks for the link to the NSA article. From that article, the following sobering statements by the late Frank Church:

“Bamford ends The Shadow Factory by quoting Senator Frank Church, the first chairman of the Senate Intelligence Committee, during the original hearings on the NSA in the 1970s. “If a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology,” said Church more than three decades ago.”

anon nurse, and stories like the ones we are linking are everyday things now. It seems as if I can’t make the rounds of the news sites I visit daily any more without running into news stories like these or, just as troubling, examinations of the way business is operating to abuse its customers (or planning to operate) while Congress either looks the other way or supplies a new tax incentive to them.

One of the interesting things in the recent WP articles “Top Secret America” about the security state we are becoming was that there is an explosion of building going on in the DC and Virginia area primarily by the various Intelligence Agencies. Billions of dollars in new state of the art building projects and their high-status accouterments. Virtually a blank check for such projects hidden throughout the Federal budget including he economic stimulus funds. There is a new class in government, a new estate as it were: the Intelligence domain that has little or no oversight by Congress or the courts and rife with redundancy and waste.

…and civil rights abuses the likes of which we’ve probably never seen before because the machine is so incredibly sophisticated, as well as the technology. This is a machine which knows no bounds — sneak and peek searches (as well as “vandalize and steal” intrusions), safety deposit box thefts, intrusive surveillance of homes and law-abiding people, defamation, harassment, interference with employment and the list goes on and on. Some of the same old tactics, but they’ve been ramped up, in my opinion. If one meets the criteria for “Perfect Citizen” (in reference to the recently revealed NSA program, one might be left alone (as much as one will ever be left alone by the “terror-industrial complex).

“The national security establishment is out of control.” (not news to many) “The $75 billions intelligence budget is two and a half times its size before 9/11.” And then this, which an accurate depiction, given my limited vantage point:

“There is no person or agency with the “authority, responsibility or a process in place to coordinate all these activities,” in the words of one official. ‘There’s only one entity in the entire universe that has visibility on all’ secret programs, the Obama administration’s nominee to be the next director of national intelligence told the Post. “That’s God.”

And those good and decent Americans who get caught in the crosshairs of the weapons wielded by the machine have only one hope, it would seem: divine intervention.

The sharing of information between the feds and local government agencies is controlled by 42 USC §14616 “Criminal Justice Information Services”

(4) Criminal history records
The term “criminal history records”—
(A) means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, or other formal criminal charges, and any disposition arising therefrom, including acquittal, sentencing, correctional supervision, or release; and
(B) does not include identification information such as fingerprint records if such information does not indicate involvement of the individual with the criminal justice system.

AnonNurse, 5 USC section 552a is a way to stop harassment of “good and decent Americans who get caught in the crosshairs of he weapons wielded by the machine”. In order to accomplish the harassment, the government creates records about individuals. In order to be exempt, not only must the systems of records be ordinarily involved in criminal justice but the individual records must be maintained by the CIA or fall into A,B, or C:

(A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status;
(B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or
(C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. http://www.justice.gov/opcl/privstat.htm

“the exemptions provision details the kinds of records that may be exempted, and they all relate to law enforcement activities that require a measure of secrecy. As the House Report explained,

Only records maintained by the Central Intelligence Agency and criminal justice records could be so exempted. Even they would be subject to the requirements relating to conditions of disclosure” H.R. Rep. No. 93-1416, 93d Cong., 2d Sess, reprinted in Legislative History of the Privacy Act of 1974, at 311-12 (1976)Maria H. Tijerina, v. Honorable Harry N. Walters CDC.0000279, 1987

From neocons to crazy-cons
Once the conservative movement was about finding meaning in private life and public service. But it has undergone a shift toward demagoguery and hucksterism.
August 01, 2010|By David Klinghoffer

Excerpt:
Once, the iconic figures on the political right were urbane visionaries and builders of institutions — like William F. Buckley Jr., Irving Kristol and Father Richard John Neuhaus, all dead now. Today, far more representative is potty-mouthed Internet entrepreneur Andrew Breitbart, whose news and opinion website, Breitbart.com, is read by millions. In his most recent triumph, Breitbart got a U.S. Department of Agriculture official pushed out of her job after he released a deceptively edited video clip of her supposedly endorsing racism against white people.

What has become of conservatism? We have reached a point at which nothing could be more important than to stop and recall what brought us here, to the right, in the first place.

Buckley’s National Review, where I was the literary editor through the 1990s, remains as vital and interesting as ever. But more characteristic of conservative leadership are figures on TV, radio and the Internet who make their money by stirring fears and resentments. With its descent to baiting blacks, Mexicans and Muslims, its accommodation of conspiracy theories and an increasing nastiness and vulgarity, the conservative movement has undergone a shift toward demagoguery and hucksterism. Once the talk was of “neocons” versus “paleocons.” Now we observe the rule of the crazy-cons.

Excerpt:
Washington (CNN) – The Republican National Committee has cancelled a fundraiser with conservative blogger Andrew Breitbart, who is under fire for promoting an edited video that falsely portrays former Agriculture Department employee Shirley Sherrod as having boasted about discriminating against a white farmer looking for her assistance.

Breitbart was scheduled to appear with RNC Chairman Michael Steele at a reception later this month in Beverly Hills.

99% of those who live off the feds whether as federal employees or as fundraisers probably don’t care at all about the party planks except as it affects their income. Abortion politics are just an example. I bet there isn’t a single family member of a federal employee with a ranking of GS10 or higher or of member of congress or of a lobbyist who have ever even considered getting an abortion. They put their daughters on expensive birth control pills claimed to control acne and emotional behavior. If Sherrod sues, she won’t be pro se so she will actually get a memorandum opinion or a jury trial and she won’t be imprisoned for engaging in pro se civil litigation without permission as I was.

“Two weeks ago I wrote about a possible — yet unlikely — changing of the tide within the Tea Party. Following the NAACP’s call to the Tea Party leaders to expel racists elements in their ranks, Mark Williams, now the former head of the Tea Party Express, was forced to resign in shame after posting an offensive, racially charged letter which suggested that African-Americans enjoyed slavery and wanted to return to it in an effort to avoid paying taxes and enjoying the benefits of welfare. In any other world, these visceral rants would be considered psycho babble — unworthy of any serious consideration. The perpetrators would be silenced and dismissed.”

I Got My Correction Thanks to the The New York Times — Now Who’s Next?

Buried at the bottom of a story published the other day, the New York Times printed a curious little correction:

The Political Times column last Sunday, about a generational divide over racial attitudes, erroneously linked one example of a racially charged statement to the Tea Party movement. While Tea Party supporters have been connected to a number of such statements, there is no evidence that epithets reportedly directed in March at Representative John Lewis, Democrat of Georgia, outside the Capitol, came from Tea Party members.

Let’s go over that again:

* The Times is admitting that there is absolutely no evidence that any epithets were shouted at the Congressman by any member of the Tea Party.
* This correction demonstrates we have finally proven our point to the nation’s most eminent and influential liberal media organ: that Rep. Andre Carson lied when he told the AP that members of the Tea Party hurled the “N-word” 15 times during the March 20 health-care rally that took place at the U.S. Capitol.

That’s great, as far as it goes – a thorough vindication of the Tea Party — but it doesn’t go far enough.

* It’s not enough for the Times to make a correction having let that calumny sit out there unrebuked for weeks and months and then, way after the fact, issue a correction.
* It’s not enough because the Times continues to imply that something racially charged might happened on the steps of the Capitol, when we have shown conclusively, via multiple videos of the moment in question, that nothing of the sort occurred.

Somewhere, Andrew Breitbart must be smiling about this article at Counterpunch, The Other Side of Shirley Sherrod, which exposes Shirley Sherrod in rather bleak terms as to her treatment of black farmers and their families:

The swirling controversy over the racist dismissal of Shirley Sherrod from her USDA post has obscured her profoundly oppositional behavior toward black agricultural workers in the 1970s. What most of Mrs. Sherrod’s supporters are not aware of is the elitist and anti-black-labor role that she and fellow managers of New Communities Inc. (NCI) played. These individuals under-paid, mistreated and fired black laborers–many of them less than 16 years of age–in the same fields of southwest Georgia where their ancestors suffered under chattel slavery.

When I first noticed the story of her firing and the association of Shirley Sherrod’s name with the rural black poor and concern for “black land-loss”, I wondered if the person being praised was the same Shirley Sherrod whom I knew. One piece posted on the July 23rd Alternet and captioned “Shirley Sherrod and the black Land Struggle” even claimed that she “devoted her entire life to economic justice”. The mistreatment of black workers at NCI under the Sherrods is a matter of record that contradicts this claim.

The other day, in assessing Sherrod’s claims against Breitbart for releasing the original clip of her comments to the NAACP, I noted that any lawsuit by Sherrod against Breitbart would open Sherrod’s entire life up to scrutiny, and that Breitbart might relish such opportunity.

Based on the quoted article above, Sherrod’s life may be one she prefers to leave unexamined.

Regarding charles Sherrod maybe he just meant people of all colors that have an interest in civil rights, that would be consistant with his history. Or maybe he did mean black americans, so what?

BTW, just who, or which people, do the bat-sh*t crazy politicians and candidates mean when they vow to “take back our country”? What constituency or tribe is that? Does that phrase set your teeth on edge as much as “our people” seems to? What other claims of constituency disturbs you?

The observation that opening up ones life in court is a two edged sword BTW, considering Brietbart’s recent history with airing distorted and false stories he should be a tad concerned. Having valid, legal cause to unleash a private detective or two on his personal life might prove interesting also. I can’t wait for the depositions to be leaked, LOL.

Earlier today, we pointed out that Andrew Breitbart’s Big Government published posts from Dr. Kevin Pezzi smearing Shirley Sherrod as a racist.

Pezzi is rather overtly racist, and has repeatedly used racial epithets like “Japs” and “Chinks,” and claimed Native and African Americans should have been grateful for their subjugation by whites. Additionally, Pezzi is a doctor/”sex expert”/author/inventor/huckster, who, among other things, says he has “beaten Bill Gates” on a math aptitude test, is “bigger than some porno stars,” and stumbled upon a cure for cancer. Pezzi has also apparently created a series of at least six fake MySpace profiles of women claiming to be big fans of his sex books.

In response to our posts, Big Government has now disappeared Pezzi’s articles. If you attempt to visit the pages for his posts and bio, you are greeted with an error. While Big Government has disappeared Pezzi from their website, they posted the following “Editorial Note” from “Publius,” which doesn’t mention Pezzi by name:

*****
So…Big Government has “disappeared” Pezzi’s articles. What do you say about that, Bdaman?

In two posts on Andrew Breitbart’s BigGovernment website, Dr. Kevin Pezzi smears Shirley Sherrod as a racist, claiming that “if someone deserves to be put on a pedestal for overcoming racism, it isn’t Sherrod.” The racism criticism is ironic coming from Pezzi, who has repeatedly used racial epithets like “Japs” and “Chinks,” and claimed Native and African Americans should have been grateful for their subjugation by whites.

Pezzi, who says that “Breitbart asked me to write for BigGovernment.com,” has a peculiar self-described history. Pezzi claims to be responsible for “over 850 inventions” and schemes such as a “magic bullet” for cancer, a “robotic chef,” and sexual inventions like “penile enlargement techniques” and “ways to tighten the vagina” (because “men like women with tight vaginas”). Pezzi has started multiple websites, from term paper helpers to a sexual help site that answers “your questions about sexual attraction, pleasure, performance, and libido” (Pezzi is qualified to do so because “No doctor in the world knows more about sexual pleasure than I do”).

Pezzi also claims to have “beaten Bill Gates” on a math aptitude test, turned down a blind date with Katie Couric, and says he’s “bigger than some porno stars.”

Pezzi also claims to have “beaten Bill Gates” on a math aptitude test:

This may very well be true. I don’t know nor have any reasons to dispute this statement.

turned down a blind date with Katie Couric,….

Well I am sure she feel that this is such a loss that she’ll never get over it….this could be career breaking for her….oh she is already somebody I have heard about. Who is this clown? I have heard of Pez dispensers any relation?

and says he’s “bigger than some porno stars.”

Well we know what he thinks with…I wonder if he and Clarence Thomas have had measurements to see who’s who in being really big dicks….Literally and Figuratively meant…..

Here they are schooling one of Breitbart’s minions trying the “ambush interview” tactic again. The target was a MM tracker. The goal this time was to apparently “discredit” MediaMatters by implying that George Soros funds them (which he doesn’t).

Although the punk won’t say who he works for, it’s pretty obvious by the smartass look on his face (soon wiped off) and the GOP standard issue cheap blue blazer.

BTW, TraitorB, don’t touch your nose so much when you’re lying. That’s a horrible tell. However, a guy from Vegas named Big Vinnie called about your poker loses. He didn’t sound as amused by this as I am.

kay sieverding: Thank you for the information. (How best to proceed is the question. With FOIA requests? Seems like a long, protracted route, but perhaps it’s the best path to some sort of resolution.)

Some new info on the murder of her father. The MSM got a lot of the story wrong. He was shot in the chest, not the back. Sherrod also said that. The FBI is looking into it. The person who shot him claimed self defense and is dead. There were some blacks on the jury for the civil trial. Criminal charges were brought before three grand juries, with no indictment.

I’m not entirely sure I understand your comment. I looked at your link and found

“Zinn had harsh words for the FBI during his academic career. In a paper published not long before his death, Zinn said the best thing the public could do to curb the FBI’s powers was to “continue exposing them.”

Of the FBI, he said, “They don’t like social movements. They work for the establishment and the corporations and the politicos to keep things as they are. And they want to frighten and chill the people who are trying to change things. So the best defense against them and resistance against them is simply to keep on fighting back, to keep on exposing them.”

If I was researching this, I would send in FOI requests to the FBI. Your congressional representative may be helpful. I would also physically go to Boston U and spend time in the libraries including the old stacks. And I would look for both libraries and organizations that could have received copies of old papers. I would send in request to Library of Congress and if possible physically go to their facility in D.C. There might be letters from Congress in old hearings directed towards the subject. There might have been sermons. There might be class notes in any of the colleges and universities around there. I would go to the Harvard Law library. There might be speeches to the Massachusetts or Boston Bar Association or articles in old bar association journals. I would contact all the offices of all the congressional representatives from Boston as to old letters they might have received. Check out the state libraries too.

In my facts, DOJ asserted for USMS a right to investigate citizens without a warrant applied for under the rules of criminal procedure. By statute, USMS is a DOJ agency under the direction of the attorney general. I sued USMS as part of my suit against DOJ and they did not dispute that USMS is a federal agency and a component of DOJ. In his decision dismissing all claims for extortion and unlawful imprisonment, Judge Bates made a comment that DOJ had not disputed that USMS is a DOJ component. It seems weird to me that he would write that, but maybe there is an attempt to position USMS as a Court Agency, a sort of private police under direction of the judges without an open procedure. That is prohibited by the APA 5 USC section 552.

Judge Bates wrote:

“she argues that the USMS violated the Privacy Act by conducting a non-criminal investigation of her. See Am. Compl. ¶ 44 (“I believe this shows a violation of the Privacy Act because the USMS is confined to criminal matters.”); Am. Compl. Exhibit 18 (USMS “Reportof Investigation”). The Privacy Act does not, however, restrict the Marshals’ investigative authority. And in any event, the Marshals’ authority plainly extends to the non-criminal matter — enforcement of a civil bench warrant — noted in the USMS’s Report of Investigation that Ms.Sieverding references. See 28 U.S.C. § 566(c) (USMS “shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties”).

The word “warrant” does not appear in the rules of civil procedure. And in criminal procedure, a warrant is issued in response to a formal written request by an authorized federal law enforcement officer investigating a crime. In 5 USC section 552 “Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be
adversely affected by, a matter required to be published in the Federal Register and not so published”.

AnonNurse, 5 USC section 552a is a way to stop harassment of “good and decent Americans who get caught in the crosshairs of he weapons wielded by the machine”. In order to accomplish the harassment, the government creates records about individuals. In order to be exempt, not only must the systems of records be ordinarily involved in criminal justice but the individual records must be maintained by the CIA or fall into A,B, or C: (and the comment continues…)

_____

I was responding to the above — but perhaps I misunderstood what you were saying.

I was just trying to emphasize that the U.S. Code says that in order to be exempt from the Privacy Act the records created by the government about a person have to be related to a criminal prosecution or criminal investigation. It’s not enough for DOJ to publish on the Federal Register that it exempts its prisoner systems, NCIC systems, and Warrant Information System from The Privacy Act it also needs to use those systems only pursuant to a criminal investigation or prosecution.

In my case DOJ’s USMS division used the systems to investigate and incarcerate me without files existing in the U.S. Attorney’s office (DOJ didn’t apply for a search warrant or an arrest warrant against me, only private parties did and they did so without a statutory authority) and without a charge that I committed a federal offense. Since DOJ investigated me and imprisoned me without the statutory procedure, and the District of Columbia court granted DOJ immunity for that, DOJ has no obstacles to investigating and imprisoning whoever they want, at least by using its USMS division. What DOJ filed in response is that as long as a judge orders imprisonment it is irrelevant as to whether or not the defendant is charged with a crime or only, as in my case, doing something that is legal, but which some people don’t want them to do.

Maybe USMS will imprison Shirley Sherrod or her lawyer if she sues someone.